Monday, December 29, 2014

Steven Salaita, Civility, and Academic Freedom--Report of the Committee on Academic Freedom and Tenure at the University of Illinois

(Pix (c) Larry Catá Backer 2014)

I have not spoken to the Steven Salaita affair at the University of Illinois since the story broke earlier this year.
The university's August decision not to hire Salaita -- just weeks before he and his would-be faculty colleagues thought he would start teaching in the fall semester -- set off a huge national debate over academic freedom, civility and the role of trustees and administrators in reviewing hiring and tenure decisions. (Scott Jaschik, A Mixed Report on Salaita Controversy, Insider Higher Education (Dec. 24, 2014))
Though I have been considering the complications of both civility (Here) and academic freedom (e.g., Here and Here), my sense was that Professor Salaita's case presented a number of complicating factors, some technical (employment status), some institutional (procedures and protections principles at the University of Illinois) and some overtly political (using Professor Salaita as a proxy in the domestic intellectual front of the religious wars of the Middle East).  

Professor Salaita's case, then, has been is still too bound up in the personal and the greater culture wars to yet be useful for rigorous critical discussion. It is, I think, still far too early to sort all of these complications out, and to distill the governance and academic freedom issues from the rest for purposes of drawing lessons and suggesting better approaches in future cases. That is particularly the case with respect to the role of the institutional faculty as a critical stakeholder in this case at the University of Illinois.

It is to that later point that I write now. On December 23, 2014,  the Committee on Academic Freedom and Tenure at the University of Illinois at Urbana-Champaign issued a subcommittee “Report on the Investigation into the Matter of Steven Salaita” (the "Salaita Report"). The Salaita Report (see full PDF here) has been praised (e.g., here) and was well reported by Scott Jaschik, A Mixed Report on Salaita Controversy, Insider Higher Education (Dec. 24, 2014). It's most interesting discussion flows from a factual conclusion that it reaches--that Professor Salaita occupied a space between applicant and employee that triggered a set of obligations on the part of the University of Illinois, and from a rejection of civility as a standard for employment. I will consider those issues here.

The Committee was made up of faculty from a broad cross section of the University. It included David O’Brien (Chair), College of Fine and Applied Arts; Andrew Alleyne, College of Engineering; Melody Allison, University Library; Matt Finkin, College of Law; and C.K. Gunsalus, College of Engineering.  Two members did not participate: Chris Higgins, College of Education; and Mark Steinberg, College of Liberal Arts and Sciences.  Its Executive Summary (Salaita Report, pp. 1-2) stated:
Steven Salaita’s proposed appointment was initiated, reviewed, approved, and processed in accordance with all applicable university procedures from the initiation of the search through his acceptance of an offer of appointment. It was complete except for final Board of Trustees approval. At that point, less than a month before his projected start date, concerns about his professional suitability for appointment arose and he was notified that his appointment would not be forwarded for that approval. Eventually, it was forwarded for Board approval and was rejected. His status at the time was complex: he was more than an applicant and less than an employee. Under these circumstances, we believe the academic freedom and liberty of political speech afforded to members of the faculty by the University Statutes should reasonably apply.

The process by which Dr. Salaita’s proposed appointment was withdrawn and eventually rejected did not follow existing policies and procedures in several substantial respects, raising questions about the institution’s commitment to shared governance. The reasons given — the civility of tweets made by Dr. Salaita in the summer of 2014 — is not consistent with the University’s guarantee of freedom of political speech. Statements made by the Chancellor, President, and Trustees asserting that the incivility of a candidate’s utterances may constitute sufficient grounds for rejecting his appointment should be renounced. We conclude, however, that the Chancellor has raised legitimate questions about Dr. Salaita’s professional fitness that must be addressed. In light of the irregular circumstances leading up to the Board of Trustees’ disapproval of an appointment for Dr. Salaita, the Committee recommends that Dr. Salaita’s candidacy be remanded to the College of Liberal Arts and Sciences for reconsideration by a committee of qualified academic experts.

The Salaita Report raised two points worth considering in more detail.  The first touches on triggering events for the obligation on the part of universities to extend academic freedom protections.  The second touches on civility as a standard for getting and keeping a faculty appointment.   The Salaita Report conclusions underlined the importance of both

VIII. Conclusions
In the matter of the complaint of Professors Robert Warrior and Vicente Diaz, we find no violation of their academic freedom nor of those who had recommended Dr. Salaita for appointment. They were not penalized for having made the recommendation. The academic freedom of those recommending an appointment is not abridged by the Board of Trustees’ rejection of it, which is allowed under university policies and national norms of institutional governance. However, as the forgoing makes
clear, neither was observed.  
Accordingly, we turn to the complained-of ground for that rejection, Dr. Salaita’s series of tweets. The 1970 Interpretive Comment to the 1940 Statement provides that  extramural utterances – political speech – “rarely bear upon a faculty member’s fitness for office.” The Chancellor elided the distinction between the two. They should be disaggregated. We do not believe that Dr. Salaita’s political speech renders him unfit for office. Further, we find that civility does not constitute a legitimate criterion for rejecting his appointment, and we recommend that statements made by the Chancellor, President, and Trustees asserting civility as a standard of conduct be withdrawn.
We do believe, however, that the Chancellor has raised a legitimate question of whether his professional fitness adheres to professional standards. In light of these allegations, we recommend that Dr. Salaita’s candidacy be remanded to the College of Liberal Arts and Sciences for reconsideration by a body of qualified academic experts. Dr. Salaita should be provided the opportunity to respond to any proposed findings of professional unfitness before the body concludes its proceedings.

We further recommend that the university take responsibility for the financial consequences to Dr. Salaita of its irregular adherence to its own policies and procedures.(Salairta Report, pp. 31-32).
1.  Employment status and academic freedom.  Of the two positions, the conclusions about Professor Salaita's employment status produces the most concern.  The concern does not arise because the Committee was wrong.  Indeed, the Committee presented a strong case for one plausible reading of the context grounded in a functional approach to drawing inferences form context. But it is also as plausible to conclude that Professor Salaita was not an employee until all of the formal requisites for employment were satisfied.  From this formal approach, the Board of Tristee's decision was critical, as a formal matter, to employment, and the validity of the decision of the Board of Trustees, then, becomes a central issue of status. From a functional perspective, the actions of the university indicated that the university expected Professor Salaita to assume a position at the University of Illinois, and that it was unusual in the extreme to have the board of trustees  take action contrary to the recommendations of the multiple levels of approval which  professor Salaita had passed.  Effectively, the Salaita Report concluded that custom at the University of Illinois, and the conduct of the parties all suggested reasonably that the appointment had become functionally effective. "As best this committee has been able to determine, the Board has never rejected an appointment that had been generated and reviewed through formal academic channels, and thus administrators and the faculty generally expect that offers of employment for tenured and tenure-track positions will be honored, notwithstanding the standardlanguage included in all letters that they are subject to the Board’s approval." (Salaita Report, pp. 15) As a consequence, something like a functionally effective set of academic freedom protections ought also to apply. To ignore the realities of practices at the University of Illinois would effectively treat the hiring process as a trap for the unwary that would be fundamentally unfair. However, from a formal perspective, the university has always adhered to a model in which appointments like that of Professor Salaita require approval at several levels of administration, concluding with Board fo Trustee approval.  That the Board of Trustees had rarely denied approval was irrelevant.  Professor Salaita unreasonably relied on assurances from university administrators which were formally ineffective before the Board of Trustees approved the appointment.  To ignore the formal requirements for appointment would constitute both an effective revamping of the University of Illinois hiring process outside of the formal processes for such revamping, and would effectively cut the Board of Trustees out of the hiring process. Academic freedom protections, then, could only attach after all of the formal requisites of hiring had been satisfied.

The Committee considered and summarily rejected the formalist approach (Salaita Report pp. 11). It concluded that the formalist approach "does not fully acknowledge the expectations mutually engendered by the university’s course of dealing." (Ibid.). As a consequence, it determined, in effect, that fairness required a functionalist approach to a determination of both employment status, and the extent to which academic freedom protections attach. They adopted a sliding scale approach that appears to suggest that the closer the applicant comes to meeting all the formal requisites for appointment, the greater the obligation of apply academic freedom principles to the candidate. The choice among plausible approaches was not unreasonable. The Committee was guided by a long line of interpretations of the AAUP's 1940 Statement of Principles on Academic Freedom and Tenure. (Salaita Report pp. 12-13). The critical factor, one embraced by the Committee as well, was a variant of an equitable doctrine of the authority of institutional officers, in this case either apparent or implied authority: "that offers made by high administrative officers, a president or a dean, are customarily regarded as binding and that any enervation of that reliability would throw “the process by which colleges and universities engage new faculty members...into complete chaos” to the detriment of both institutions and faculty members." (Salaita Report, pp. 13; citing in part Livingstone College, 44 AAUP Bull. 188 (1958)).The Committee also reinforced its choice of a functional approach as the better plausible alternative precisely because of what it deemed to be a failure of essential process in the context of board of trustee approval: "one possible course of action suggests itself. When concerns arose about his suitability for appointment, he could have been notified of the reasons for the concerns and provided an opportunity to respond in writing. The concerns and his response should have been referred to an appropriate group of academic experts. Their recommendation could then have been forwarded through the normal appointment reporting procedures before final action." (Salaita Report, pp. 16).

Yet, here again, the failure of procedural protection need not necessarily point to the choice fo a functional approach and with it the conferral of a measure of academic freedom protections.  It might have been possible to adopt a formal approach, which raises no obligation of academic freedom, but still find that the board of trustees owed the candidate basic procedural protections that intensify as the candidate comes closer to the final stages of appointment. This ought to have been the case especially where, as in the case of Professor Salaita, the appointment process had reached a final stage in which the university had effectively made a conditional offer of employment (conditional at the last stage on board of trustee approval).  At that stage, absent an explicit reservation by the board to act irrationally and without the benefit of any fairness of process--something that would seem substantially usual in the university context--Professor Salaita would have been entitled, as the Committee suggested, to notice of concerns and an opportunity to respond (Salaita Report, pp. 17-21).  This procedural protection ought to be available at the very least, even had a formalist approach been adopted.  But this would also have reduced the centrality of academic freedom issues to the issue of fairness in hiring.  And that might have been a more straightforward approach, fairer to both the university and to Professor Salaita.   In any case it would have been useful for the Committee to have developed this variant on plausible approach in the event either the university or the courts rejected the functional approach the Committee preferred.

2.  Civility as an Employment or Hiring Standard.  While academics tend to view civility as a problematic standard for assessment or employment, universities, as institutional actors have increasingly embraced the concept.  The "new" civility standard lies at the heart of the assessment of Professor Salaita's suitability for employment at the University of Illinois.  Brandeis University's President, Frederick Lawrence, delivered a letter to the Brandeis community about the need for civility in discourse in the context of the murder of two New York City Police officers in December 2014:
The discussion of the past week continues a national conversation on race and law enforcement that is bound to be heated and controversial. We will defend the free expression rights of all students in this debate. Arguments, even heated arguments, are one thing; threats are another. Within our community, we must address each other in ways that do not threaten each other. Any student who feels unsafe should notify public safety immediately.
It is critically important that we be able to have discussions about complex and charged issues in a climate of mutual respect and civility. This is an ambition for the full society – it is a mission for our University. I am proud that most of the discussion on our campus over the past days has been characterized by the kind of respectful and reasoned discourse that is the essence of an institution of higher learning. (Letter dated Dec. 29, 2014).
These sentiments paralleled those of the University of Illinois Chancellor in the context of the hiring decision of Professor Salaita. The Committee noted: "It is rather that, in her view, the university has an obligation to provide an atmosphere “welcoming” to students, where critical and controversial discussions can take place in an environment allowing multiple viewpoints to be exchanged. Dr. Salaita’s tweets gave concern that his classroom environment would not be a “safe” or welcome one, that students would be placed in a position inimical to learning." (Salaita Report, pp. 22). The Committee adopted the position that though there are distinctions between political and professional speech, and that they ought not, as a general matter, be conflated, there are circumstances under which political speech might touch on professional capacity.
There are circumstances where political speech can legitimately trigger inquiry into professional fitness, the question, however, being one of professional fitness, not political acceptability. Because drawing these lines is difficult and subject to the emotion of the minute, great care must be exercised when both are present. (Salaita Report, pp. 23).
The Committee noted that the Statutes of the University of Illinois do not provide a mechanism for using civility--understood as tone and forms of expression of political speech--as a mechanism for discipline.  The statutes do provide a mechanism, however, for the university to criticize the speech and to dissociate the University form such speech.  (Ibid, pp. 24). The Committee noted that the University appeared to adopt the AAUP's "unless it clearly demonstrates the faculty member’s unfitness for his or her position" standard of the AAUP's  Statement on Extramural Utterances (appended to the 1940 Statement as an interpretive Comment. (Salaita Report pp 25). As a consequence the Committee rejected the use of civility as a standard for determining fitness for appointment (Ibid) and relied solely on the "fitness for position" standard of the Statement on Extramural Utterances. (Ibid., pp. 26). To that end the Committee goes to some lengths to distinguish political speech, with respect to which there are few standards (other than the avoidance of threat), and professional speech, with respect to which substantial standards apply, the rejection of which can serve as grounds for denying an appointment.
Academic freedom. . . attaches to speech as teacher and researcher – that is, to professional speech. Unlike political speech, professional speech is held to professional standards of care. As the seminal 1915 Declaration of Principles on Academic Freedom and Tenure put it, the liberty of the scholar to set forth “conclusions, be they what they may” is “conditioned by their being conclusions gained by a scholar’s methods and held in a scholar’s spirit.” Distortion or mischaracterization of facts, willful neglect of relevant evidence, assertions grounded in little or nothing more than the zealous advancement of a cause fall afoul of a professional standard of care.  
* * * 
Further, the 1940 Statement allows that political speech, though rarely in itself evidencing professional unfitness, can give rise to legitimate questions — for example, whether Dr. Salaita’s passionate political commitments have blinded him to critical distinctions, caused lapses in analytical rigor, or led to distortions of facts. These are questions that have arisen in the present controversy. (Ibid., pp. 27, 29)
It is on this point, whether Professor Salaita's politics has adversely affected his professional speech, the Committee uses to provide the University with a means for justifying the denial of appointment.  To that end the Committee recommend "that the matter be remanded to the College of Liberal Arts and Sciences for reconsideration by a body of qualified academic experts. Dr. Salaita should be provided the opportunity to respond to any proposed findings of professional unfitness before the body concludes its proceedings."

This conclusion is, like that of Professor Salaita's employment status, plausible. But it does provide the same type of window for veiling decisions grounded in politics on technical judgments about conformity to the professional standards of the field in which the candidate researches and writes.  To some extent the Committee sought to protect faculty buy suggesting that such judgments be made by faculty experts, presumably without the influence of board of trustees or senior administrators.  But it is difficult to ensure that insulation. And it is harder to ensure that politics will not get in the ay of the judgement of academic experts who may have more invested in protecting conventional field boundaries than in dispassionate and broadminded application of fitness standards. Yet, such judgment must be made if there is to be preserved even a modicum of professional standards, and a parallel to tenure proceedings might be a useful means of structuring such investigations. Those of us old enough remember when critical legal studies scholars were hounded in the academy on precisely the standard the Committee would recommend for the review of Professor Salaita. (E.g., Jennifer Kingson, Harvard Tenure Battle Puts 'Critical Legal Studies' on Trial, New York Times, Aug. 30, 1987) ("Members of a heterodox scholarly movement known as Critical Legal Studies contend that conservatives at Harvard blocked the tenure bids of two of their adherents, Clare Dalton and Mr. Trubek, because of their political views, an assertion that the school's dean denies." Ibid).  It would be troubling to see a return to those sort of battles a generation on.  What may be needed are standards that may better ensure that technical standards are separated from political premises. Where that is not possible, then we come one step closer to crisis in research standards.

And lastly, the Committee chose to take on the eagerness of universities to embrace one or another form fo a "civility" standard for disciplining their faculty and staff.  The trend has been worrisome.  I have argued that civility standards may be of concern, if only because those who enforce it will retain the power to define civility and to target offenders, while remaining substantially insulated from the civility requirements they impose. The Committee comes to the issue of civility, and its critique, from another perspective (Salaita Report, pp. 35-38).
In sum, although the Chancellor, the President, and the Trustees are quite correct in drawing attention to the university as an educational community, what follows from it is quite the opposite of what they would have the university do. The consequences of the vagueness of the prohibition have specific historical purchase here. Civility has served to ostracize individuals or entire social groups on the grounds that they are savage, barbarous, primitive, infantile, ill bred, or uncouth. This is surely not the intent of the Chancellor or the Board, and yet, the criterion was used, for example, to silence African Americans in Greensboro, North Carolina, in the years around 1960 by asserting, paradoxically, that their peaceful protests demanding civil rights violated standards of civility. (Salaita Report, pp. 36).
The Committee also noted that it believed that the "Chancellor, the President, and the Trustees acted sincerely out of a commitment to inclusiveness, yet in this instance holding civility up as a standard of conduct conflicts with academic freedom and causes some to feel excluded from the university community."(Ibid., pp. 38). Our better angels ought to compel us to exercise restraint when we seek to engage in debate about important issues of the day.  And no one ought to feel threatened.  On the other hand the object of debate is precisely to threaten ideas, premises, positions and world views.  These threats can affect people  as profoundly as physical threats and the use of disagreeable words.  Separating intellectual threats to an otherwise undisturbed way of thinking about things from physical threats may be difficult.  But until we abandon an aggregated "threat" standard for a more nuanced approach, efforts like civility will likely cause more harm than good in an institution the principal mission of which includes making those profound and culture changing threats.

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